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FREEDOM of INFORMATION ACT Previously Released Information FREEDOM OF INFORMATION ACT Previously released information / disclosure log FY 2016–2017 NOTES Logs are updated at the end of each quarter Questions are produced in their original format TOPIC PAGE 1ST QUARTER 1) Civil complaint 4 2) Breaches of the Data Protection Act 7 3) Matters relating to deceased mother’s estate 10 4) Misconduct in public office 10 5) Tribunals 22 6) (a) Court of Appeal; (b) Immunity of Councils 24 7) Solicitors signing documents 26 8) Law applicable to contractual obligations 26 9) Debt or liability 27 10) GOV.UK 28 11) Council Tax 28 12) Council tax statutory demands and bankruptcy petitions 29 13) IT structure 30 14) Local authorities 30 15) Common law jurisdiction 31 1 2ND QUARTER 16) Withdrawal of the UK from the EU 31 17) Earnings 32 18) Security and fire products and services 33 19) Electoral law 33 20) Contracts 34 21) ICT expenditure 35 22) Common law jurisdiction (internal review) 36 23) Can a regulation (secondary legislation) change primary legislation? 37 24) Council Tax (internal review) 38 25) Categories of person registered by the Law Society 40 26) Common law jurisdiction 41 27) Easements 41 28) Publication policy 41 29) Magna Carta / lawful rebellion 42 3RD QUARTER 30) Electoral law 42 31) Legal definition 45 32) Software contracts 45 33) Implementation of Law Commission reports 46 34) Legal requirement to notify the Land Registry of bankruptcy 46 35) Misconduct in public office 48 2 4TH QUARTER 36) Prescribed creditor’s insolvency forms for bankruptcy 55 37) Accounts and IT questions (various) 55 38) County court hearing centres’ specified cases 56 39) Bankruptcy petitions 57 40) Nolan principles for public office holders 57 41) Publication of local authority reports 57 42) Use of Law Commission published content in legal research databases 58 43) Responses to 13th Programme consultation relating to marriages 58 44) Supreme Court ruling on Brexit 59 45) Expert evidence in criminal proceedings 60 46) Protection of official data 60 47) Protection of official data 61 48) Protection of official data 62 49) Procurement cards 63 50) Protection of official data 63 51) Protection of official data 64 52) Impact of Brexit on IT systems 67 3 1ST QUARTER Topic 1) Civil complaint Date of Response 31/03/16 Details of Request In respect of the following: Magistrates’ Courts Act 1980 1980 CHAPTER 43 PART II IVIL JURISDICTION AND PROCEDURE Jurisdiction to issue summons and deal with complaints F151 Issue of summons on complaint Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates' court to answer to the complaint.] Hearing of complaint 53 Procedure on hearing. (1) On the hearing of a complaint, the court shall, if the defendant appears, state to him the substance of the complaint. (2) The court, after hearing the evidence and the parties, shall make the order for which the complaint is made or dismiss the complaint. (3) Where a complaint is for an order for the payment of a sum recoverable summarily as a civil debt, or for the variation of the rate of any periodical payments ordered by a magistrates’ court to be made, or for such other matter as may be prescribed, the court may make the order with the consent of the defendant without hearing evidence. Please provide the authorisation (documented authority) by which a complaint can be laid at a civil hearing in a Magistrates Court for debt when precedent, orthodoxy and Common Law deem a 'claim' to be 4 the correct vehicle to bring a case to a civil proceeding to establish liability. Acts and Statutes do not provide an answer, therefore will not be acceptable as a response. Answer You requested information from the Law Commission under the Freedom of Information Act 2000. We acknowledged your request on 8 March 2016. You asked us to: " Please provide the authorisation (documented authority) by which a complaint can be laid at a civil hearing in a Magistrates Court for debt when precedent, orthodoxy and Common Law deem a 'claim' to be the correct vehicle to bring a case to a civil proceeding to establish liability." You expressly state that "Acts and Statutes do not provide an answer, therefore will not be acceptable as a response". However, it is my understanding that a magistrates' court has jurisdiction to hear a complaint in civil proceedings under section 52 of the Magistrates' Courts Act 1980 subject to any other enactment giving jurisdiction on the particular issue. The Court will be able to hear proceedings in relation to particular categories of debt where jurisdiction is granted under some other Act. For example, section 65 of the Taxes Management Act 1970 allows the recovery in the Magistrates' Court of sums less than £2000 owed in income, capital gains or corporation tax. The complaint procedure is set out in sections 51 – 57A of the 1980 Act (available here: http://www.legislation.gov.uk/ukpga/1980/43/contents) and the Magistrates' Courts Rules 1981 (available here: http://www.legislation.gov.uk/uksi/1981/552/contents/made ). Please feel free to send clarification if I have misunderstood your request. Do note that the Law Commission is a statutory body whose function is to keep the law under review and to make recommendations for its reform. We are not in a position to provide legal advice and nor do we have particular expertise on court procedures. If you wish to consult some of our on-going and/or completed projects, please see http://www.lawcom.gov.uk/project/. Following a request for internal review, the Review Officer sent the following response on 10/05/16: I write in response to your email of 8 April 2016 in which you requested an internal review into the handling of your request for information. Your request was set out in your email of 7 March 2016 and the Law Commission responded by email on 31 March 2016. You responded on the same date to clarify your response. The Law Commission replied on 12 April 2016, by which point you had (on 8 April 2016) already requested an internal review of the handling of your request for information. I have now concluded an internal review of the Law Commission’s response to your request, both in its response of 31 March 2016 and its response of 12 April 2016. I have upheld the Law Commission’s decision, and supplemented it. I explain my decision below. My interpretation of your two emails is that you are asking on what basis the Magistrates’ Court can deal with council tax 5 liability (which you say is a civil as opposed to a criminal matter). As a preliminary point, it might help if I address a comment that you have made in various places in your correspondence. You have suggested that legislation cannot override the common law. Legislation enacted by Parliament is part of the law of England and Wales, in combination with the common law (which can also be described as judge-made law, deriving from cases). But not only is legislation part of the law, legislation is superior to the common law. So legislation can override the effect of the common law. By contrast, the common law (i.e. decisions of judges) cannot override the effect of legislation. I have upheld the Law Commission’s response for three alternative reasons. First, in my opinion your request if not for “information” within the meaning of the Freedom of Information Act (“FOIA”). Rather, your request is for legal advice concerning the basis of the Magistrates’ Court’s jurisdiction to deal with council tax liability matters. The Law Commission does not give legal advice. It is not required to do so by the Law Commissions Act 1965 nor by the FOIA. Your request is not for information about points that were the subject of a Law Commission review, on which the Law Commission might hold unique information. Rather, you are asking the Law Commission to apply its general expertise in law, and use publically-available legal resources, to work out an answer to the question that you have raised. Your request is therefore for legal advice, not for disclosure of information that the Law Commission already holds. Second and alternatively, in the event that I am wrong and your request is for “information”, I have concluded that the information is not “held” by the Law Commission within the meaning of the FOIA. I would not expect the Law Commission to hold information about the powers of the Magistrates’ Court to deal with council tax liability. Moreover, my searches of our records have not revealed any relevant material. Third and alternatively, in the event that I am wrong and your request is for information that is held by the Law Commission (for example, in its limited collection of books), I have decided that it is exempt from disclosure under section 21 of the FOIA which states that “Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information”. The same recourses that would be used by the Law Commission to answer your question are also available to you. (1) Legislation can be accessed from Legislation.gov.uk, and the legislation that appears to be particularly relevant is available via the direct hyperlink that the Law Commission provided in its first response of 31 March 2016; (2) Legislation, case law and textbooks can be accessed via Westlaw, LexisNexis or other similar online databases, either by payment of the appropriate fee to those commercial organisations or via the British Library (again on payment of the appropriate fee; a temporary reader’s card costs £5.00.
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